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The Situation of State Judiciaries

The hearing room of the Wisconsin Supreme Court could be a Beaux-Arts museum, exhibiting images of justice as idealized in America for centuries: ornate, dignified, above reproach. Light pours in through a huge leaded-glass skylight, radiating off veined white marble. Large murals set high off the floor dominate each wall, depicting the venerable sources of Wisconsin law—Roman, English, Native American, and federal. The one to the left of the room’s mahogany bench portrays King John of England reluctantly granting the Great Charter, or Magna Carta, which, in June 1215, ended his lawless seizure of nobles’ land and began an era of legal rights embodied in English, then American, common law.

Article 40 of the Magna Carta pledged, “To no one will we sell, to no one will we refuse or delay right or justice.” But recently, in a string of expensive and increasingly contested elections, candidates to be justices of the Wisconsin Supreme Court have flouted the not-for-sale principle, demeaning the courtroom’s grandeur.

Wisconsin is not alone. In state after state, campaign contributions and related spending by special interests have risen dramatically in the past decade and are expected to swell in the wake of the U.S. Supreme Court’s 2010 Citizens United decision, which removed any limits on independent spending. Wisconsin is one of 22 states that elect judges to their highest courts, or one of 38 if you count states that have so-called retention elections by which appointed judges run to retain their seats. In all of them, independent spending threatens to overwhelm the system of electing judges, making them and the candidates running against them dependent on private money and eroding the public’s confidence in the courts.

Because judicial elections occur on different cycles and are subject to the push and pull of different forces in different jurisdictions, Citizens United has not increased spending uniformly in each state. But across the country, the ruling has caused spending to continue to rise at an ever-accelerating rate. This year, races in Florida, Michigan, and West Virginia have already set new highs for independent spending. Nowhere, though, are the pernicious effects more evident than in Wisconsin, which stands as a warning of just how bad things can get.

In 2007, in a Wisconsin Supreme Court race in which the two candidates spent a total of $2.7 million and special interests spent $3.1 million, Annette Kingsland Ziegler was elected and kept for conservatives a seat being vacated by another judge. The following year, the two candidates together spent “only” $1.2 million, joined by $3.4 million from special interests, much of it on distorted attack ads, which helped Michael Gableman defeat Louis Butler, the court’s first African-American justice, and swung the seven-member bench from liberal to conservative. And things have only gotten worse—over the past five years, special interests in Wisconsin have spent $14.8 million on TV ads to influence judicial elections, more than in any state except Pennsylvania, which has more than twice Wisconsin’s population.

After his defeat, Butler appeared at a conference on judicial selection reform. Holding up a copy of John Grisham’s 2008 novel, The Appeal, he said, “Welcome to my world.” In the novel, a chemical company’s industrial waste poisons the water in a Mississippi town, causing widespread cancer and death. The company stage-manages and heavily funds a successful campaign to replace a liberal justice with a conservative one, who shifts the state supreme court from left to right and casts the deciding vote to overturn a $41 million verdict against the company. The ads that defeated the liberal incumbent attacked her record on crime and other social issues, but really it was her lack of favoritism to business that led the company to take her down.

Like Grisham’s successful challenger, Michael Gableman was a little-known county trial judge with thin credentials, recruited by business to run against Butler. He became the first candidate to defeat a sitting justice since 1967; only three other justices in state history had been defeated in the previous 115 years—in 1947, 1908, and 1855.

Gableman’s TV ads accused Butler of having worked “to put criminals on the street,” pointing to the rapist of an 11-year-old girl. The ad was so misleading that the Wisconsin Judicial Commission charged Gableman with misconduct for “reckless disregard for the truth.” As a judge or justice, Butler never heard a case involving the rapist. But as a public defender years before, he had unsuccessfully sought a new trial for the man because of a breach of criminal procedure in a rape case. The rapist served out his time, and after his release, when he was no longer Butler’s client, he sexually assaulted another girl. Nevertheless, a review board rejected the misconduct charge against Gableman, finding that each individual assertion in the ad was true, so their sum could not be false.

Butler was not targeted for his views on crime, however. Gableman shifted the Wisconsin court to the right and cast the pivotal vote in 2011 when, by 4-3, the court overturned a trial court’s stay of a Republican-backed state law curbing the collective bargaining rights of public employees, effectively upholding the law—the legal fight that made Wisconsin a battleground between the rabid new right and the outraged old left in American politics.

For a PBS Frontline website on “Justice for Sale,” click here. To download the “New Politics for Judicial Elections Report for 2006,” by the Justice at Stake Campaign, click here. For an NPR interview (audio) of Justice O’Connor about judicial independence by Nina Totenberg, click here. For a PBS interview (transcript, audio, or streaming video) of Justices O’Connor and Breyer on the topic of judicial independence, click here.